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Legal Advice Isn’t a|Liability Shield for Police

(CN) - A Pennsylvania police officer's reliance on legal advice when he arrested a man for videotaping a traffic stop does not automatically shield him from Fourth Amendment liability, the 3rd Circuit ruled.

Officer David Rogers of the Carlisle Borough Police Department relied on an assistant district attorney's advice when he arrested Brian Kelly in 2007 for violating the Pennsylvania Wiretapping and Electronic Surveillance Control Act by recording the stop.

A federal judge ruled that Rogers was entitled to qualified immunity, because he had acted on legal advice.

The federal appeals court in Philadelphia said this wasn't always the case.

It pointed out that the lower court had "relied upon the mere existence of legal advice without considering the relative clarity or obscurity of the Pennsylvania Wiretap Act and the cases interpreting it."

The 3rd Circuit found ample state precedent, which the district court failed to consider, that "covertly recording police officers was not a violation of the Act."

"At the time of Kelly's arrest, it was clearly established that a reasonable expectation of privacy was a prerequisite for a Wiretap Act violation," Judge Thomas Hardiman wrote. "Even more to the point, two Pennsylvania Supreme Court cases -- one almost 20 years old at the time of Kelly's arrest -- had held that covertly recording police officers was not a violation of the Act."

The court vacated summary judgment for the officer "insofar as it granted qualified immunity to Officer Rogers on Kelly's Fourth Amendment claims" and remanded the case for further hearings.

On Kelly's First Amendment claim, however, the court upheld the ruling for Rogers, saying a reasonable officer would not necessarily know that seizing a camera or arresting someone for videotaping police was a First Amendment violation.

The appeal raised the question of whether a police officer's reliance on legal advice "cloaks him with qualified immunity" -- an issue of first impression for the 3rd Circuit.

Rogers claimed his conversation with the assistant district attorney "shielded him from liability."

The appellate panel agreed, but cautioned that officers still must exercise discretion.

"In our view, encouraging police to seek legal advice serves such a salutary purpose as to constitute a 'thumb on the scale' in favor of qualified immunity," Hardiman wrote. "Accordingly, we hold that a police officer who relies in good faith on a prosecutor's legal opinion that the arrest is warranted under the law is presumptively entitled to qualified immunity from Fourth Amendment claims premised on a lack of probable cause."

But Hardiman warned that the advice must be "objectively reasonable ... because 'a wave of the prosecutor's wand cannot magically transform an unreasonable probable cause determination into a reasonable one,'" and "a plaintiff may rebut this presumption by showing that ... a reasonable officer would not have relied on the prosecutor's advice."

The panel also affirmed dismissal of Kelly's claim against Carlisle Borough, because he failed to establish municipal liability.

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